violation, and we could say, precedent has been set and the case comes before me we could say that i did not violate the law either, i think that is very, very convenient, basically you can't have someone giving you advice which you rely on totally and they are unwilling to be honest about the fact that they may be affected by the decisions that you make. and a simple fact that you say, oh, the city attorney can interpret these laws, the other bodies like the task force even though the law specifically says that they are the ones to interpret it, can't, is real hypocracy >> interpretation is allowed and then there can be different opinions, you can't say that the task force can't interpret it if the city attorney can.

the task force can add to it but the city attorney can. >> even though in the law it says that the bodies to do it, and yet, the city attorney who has absolutely no right to do it, can do it not with a legal decision, but with simply writing a memo. >> good evening, commissioners my name is katherine howard i was one of the panelists at the common wealth club and i am member of the friends of the music club and the presidential alliance. i am a architect and i have been involved in park reservation it started with saving the trees in gold on gate park, since that time i have found it necessary to keep an eye on various projects planned for the park. golden gate park is really the prize for those people who see

park land as free land for building their pet project from the proposed 1915 world's fair expocysing that would have wiped out the park to the freeways that were going to be built through the park. >> the soccer fields are a development. it could remove 7 acres of grass and replace it with artificial turf, it will add over 150 lots of sports lighting right next to the ocean beach, it will be on until ten every night of the year, ruining the wild life habitat and the beach experience for those who come to view the sunset to sit by the fire or gaze at the stars. lack of transparency regarding this project was evidence from the beginning, it was presented to the organized sports community of a full six months before there were know public hearings. public comment at city hearings as you know is limited to 3 minutes compared to the unlimited time given to city

departments. what was needed was a place dedicated to free speech for a qualified panel of experts to discuss the complete picture of past, present and future threats to golden gate park. >> i was frankly appalled when i learned of the e-mails written by the rec and park department. i had suggested this panel discussion and by doing so, i had exposed respected professional panel members to personal attack. and i am shocked, i am really shocked that members of our city government, try to stifle free speech and to have this panel discussion canceled and denied that they had tried to do that. >> all that we were asking for was 50 minutes, to present our love of golden gate park. we are very grateful that the common wealth club stood by its principles and let the expert panel hold this discussion. >> i recommend that you go to

our website ssocean edge as in san francisco, dot org and view the presentation and judge for yourself. >> free speech and transparency are vital to open government and must be preserved at all costs. thank you. >> >> commissioners, juddy berkowitz president for the association of san francisco neighborhoods. i would like to point out that mr. wooding is an investigative reporting and investigates with depth and accuracy. i urge you to up hold the findings and decision of the sunshine task force and the recommendation based on that to find the respondents have

violated sunshine ordinance session 67.25.26,.27 and.21 c. >> and site them accordingly. this follows, the private event was organized at a private venue. the government gets wind of this, private event and finds it threatening. you succeeds to change the private event. the private event coordinators sunshine the government for the documents that they used to change this event. it, the government... after they were sunshined, the government says that it has no records. the complainant changed those records from a third party.

when confronted by these records, the government changes its tune and says that it has, they were there, but, they were deleted. so, if you believe that they actually deleted them, or not? if they were actually there, when they were sunshined or not? is beside the point. the point is that as so many others have made or have pointed out, is that there is a violation, please find them guilty and site them accordingly, thank you. >> i am bruce wilf and i am the associate chair of the task force there were a lot of

comments that were made and i am not going to repeat them. but one that was mentioned is what this department relies on with regards to records retention and that is their own records retention policy which is contained in your package. and now, in it, it specifies the specific section of our city code, which is administrative code 8.1, now since there is kind of a feeling that you must determine whether the task force is determination is valid or not, let's go straight to the law that actually governors what the retention must be. and that also includes the sunshine ordinance. now, under 8.1, if you notice on page 2 of the retention policy, in category 4, it states in the first sentence that documents and other materials that are not records,

quotes, unquotas defined by the administrative code in section 8.1 may not be retained, but 8.1 does not say anything about not being retained it says that everything must be retained. and that it must be according to 3 different categories. they are specific, they are current records, and there are storage records, or permanent records, there is no such label as essential records. so, a lot of what you see here in this records retention policy is embellished when you read that administrative code 8.1. and i would strongly ask you to refer to that and apply what is going on here and what was said to be or needed to be retained or not. and now, there is a question as to whether it public records with regards to city records verses, external records needs

to be retained, and section 8.1, after the end of section 8, let me see if i can find it we will just par phrase, it does specify that the documents that are pertaining to the business of the department. internal, external, it does not matter what form it is in, it is all pertinant. >> if this is a point to me this is the point that i would give me pause, i would say, if i don't know i have not read section 8.1 of the administrative code, i would continue this item, i would read it, and come back and then, have another discussion about it. i just feel that it is... it really speaks to this, i don't know who created this retention policy, but there are a lot of anomolies in it there is no listing like that there. thank you.

>> good evening, david pill pal and i am speakings an individual i was not a member of the task force at the time of this matter was heard. i appreciate all of the comments that the previous speakers made. i believe that bruce wo lf who spoke before me was most on point. and i agree with much of what he said. i would, refer the commission to the record retention and destruction schedule that is included in your packet, both part two, page 1 and 2. and the over all policy that proceeds the chart. i believe that the e-mails in question were improperly deleted and were more proply characterized as core

responsibility ans and not correspondence not requiring follow up. referring again, to the section category four, defining the no retention required records as not among other things and not otherwise required to be retained and not necessary to the function of continuity of the department and which have no legal significance that those may be destroyed and no longer needed etc.. and i will let you read that paragraph on page 2. i believe that the e-mails were in relation to the continuing matter, may or may not have required follow up but were in any event general correspondence. what is not clear to me, having been involved in this area of law for many years is what the consequences are of failing to adhere to the department's retention policy. i recall in 1998, or prior to,

putting the property g. amepdments on the ballot in 1999, there was a lot of discussion about what sections of the ordinance to amend and it was decided to only limit the amendments to chapter 67 to the sunshine ordinance, itself. so, that is why there is that new section that was read earlier that talks about the department heads maintaining records in a business like manner so as to not supercede section 8.1, of the admin code but to reinforce the notion that the departments needed to keep records that were required to be kept not keep phone messages from, you know, one spouse saying, you know, please pick up the milk at the grocery store. but, those things that related to the functioning of the city government needed to be kept in a business-like manner and it appears that did not occur here and i would encourage you to

find for mr. wooding in this matter unless you have any questions, thank you. >> questions for either mr. wooding or mr. ginsberg? >> mr. ginsberg, i have questions for you. >> yes, questions for mr. ginsberg. >> thank you, chair, hur. >> mr. ginsberg, what is the department's protocol on looking for back up files and back up data when responding to sunshine requests? and the reason that i ask, also, is it troubles me a bit that the request came in just weeks after the events in question. i think just a couple of weeks or a few weeks. so, what is the protocol for when you know that there were e-mails but they were deleted? >> very close with the city

attorney's office on all record requests and when request was made to look at our back up data, i think that our custodian of records went did doing that in conjunction with the city attorney and i don't know that it is a routine practice that we routinely check back up data, i think that when we are asked to do so, we do. >> you waited until the task force called it to your attention and asked to you do it? >> i believe that that was the time frame. >> i am not quite sure of the time frame when we ended up working with the department. >> okay. and so at this point in time, does the department have a protocol about asking for you know to search back up files or back up tapes when getting a sunshine request? and i mentioned this only because you had made a point saying that you have a full fte

person as the custodian of records and that you get many, many requests. >> right. so we actually have about a person who works full time and half of an fte and all of the time that is spent with the department staff going through and preparing and copying the records adds up to a full fte. it is something that we could take a look at it. when the requests come in, we work with the city attorney's office and when there is a specific request to kind of look through the back up data and tapes, you know, we will certainly do that. >> okay. >> so in this particular instance when you got the request, at the time that you responded to miss gong that there were no responsive documents, did you recall that you had e-mails pertaining to this the subject matter? >> i did two things. i had no e-mails on my sf gov account or any city account. and i am not each sure if i

remember whether i had deleted an e-mail. i was copied on it. i think in my you know i may have told olive that i don't have any e-mails i deleted them on my personal account. which i do repeatedly. in a matter of housekeeping. >> when the it department did not recover and i did not have in the packet the specific e-mails that were recovered were there e-mails from your account? >> not from my personal account there were no e-mails on my stgov, account. >> i see, thank you. >> mr. ginsberg... >> following up on that. >> sure. >> you get this e-mail, this request from miss gong, what specifically do you do next? >> so i think i got the request either late friday or first

thing monday, i think that the question came in some time around noon on friday and i honestly have not looked at my calendar to know if i was in the office. i asked my sfgovaccount. >> what did you do? >> i either searched for anything involving, i searched in response to the criteria in the specific request. so i don't have it in front of me, it might have been all e-mails dealing with the common wealth club or in communication with mark beul or sarah ballard. there might be other material but i don't remember. >> i am trying to imagine what search you might have conducted here. >> i actually do keep very thorough e-mail records. i have probably about 50 different files and i actually have a lot of e-mails and records for a vote of public policy topics and i would have searched all of them and nothing came up. >> how... i am trying to... how are they divided?

you would have had a common wealth club folder? >> i may not have had a folder or i may have checked in the in box, i have an in-box and as time allows i try to manage my files where i will move e-mails in conformance with the department's record retention policy into subject matter files, i may have a file for parks, a file for beach, i may have a file for recreation. you know, basically different subject matter, because it is easy to organize and i have 50. >> do you have a folder for mr. buel? >> i do not. >> maybe i should. >> so when you searched these e-mails, do ut have to search each folder individually to try to find the responsive documents or can you run one search? >> i think that run one search. you can use a search key and it will come up with all of the

e-mails that are in your general nbox or response to a key word but sometimes i will check other files that i might have in my file management system. >> now, are you actually remembering doing these searches or just saying what you likely would have done. >> that is what i likely would have done. >> where else are e-mails kept within your department? >> i mean, we have, probably 600 full time staff, so there are both, we have a combination of centralized and decentralized. i may not be the subject matter experts and we do have a server which is cap able of being searched and i do believe that in response to this it may not have been as quickly as he would have liked. we did work with the staff to search the server. >> okay. so let's go back to what you do, because i know that you are not the expert but you are the

only subject of this particular language in our jurisdiction. >> so you get an e-mail that you deem to be important. do you or can you categorize it in some way or put it on a server or something that is more centralized so that if it is lost from your e-mail it can be retrieved by others? >> i do believe that on my stgov, account it does back up to a server, i am certain of that but i am not the subject matter expert. but again within my own desktop, i have an inbox, which i tried to keep in relatively manageable order and then i have a number of files based on the topic or subject matter. >> okay. >> so there is no central storage place for important e-mails within your department. >> i think that our server does back up e-mails, that come into the department. so i am going to assume that i am not the it expert but i assume that we have a server

that has copies of all of the e-mails that come in through the sfgov account. >> so when, i believe it was your assistant, responded to miss gong's e-mail, when staisy white responded to her e-mail saying that neither i or phil have any documents in response to the request below. you personally searched your account? right, correct? >> yes. >> and did you have a conversation with miss white about it? >> i am pretty certain that would i have, because i coordinate with miss white who has access to my e-mail account if i am out of the office i will have her double check or look through files but i am certain that we would have looked through it to make sure that we are being responsive. >> any other questions for mr. ginsberg? >> just when you decide something is category four under your retention policy, is there some standard period of

time that you retain it? some file before you delete it? >> there is no standard, the period of time that i have until i delete it is the next period of time that i have to manage my inbox if i am not going to retain because it is not categories 1, 2, or 3, and i get the opportunity to manage my inbox is when i will delete non-essential or e-mails that were not consistent with our record retention policy >> now when you delete, you get the e-mail and you hit delete, isn't there a category of deleted items? there is a trash box which periodically empties. >> yeah. and what is the policy on how often that is deleted? >> commissioner i don't think that we have a policy on that

specific point, i think that at the point in which we delete we delete, and it is possible though that if you go back to our server as was done here, with you will find the records that have been deleted. but again, you are asking me a question that is well beyond my level of technical expertise. >> but when you got the request, did you go to the deleted items to see whether there was any item in that deleted file that had not gone out of the trash box? >> i would have checked all of the files including my deleted inbox. >> i have a question that may not be for mr. ginsberg, the question is help me think about whether it is important to get an answer and if so from whom. is it whether there is a

standard city-wide policy, with regard to handling open records requests by referring to the back up tapes in the first step. it does seem unreasonable for me, if i am a member of the public and a requestor, when i asked for something to know to ask for it, from back up tapes or some other source. i imagine that i would think that i was asking for this record wherever it was kept. so whether it was kept in a file drawer, it seems to be a city wide policy, not a department by department policy. i could restate it for you, and really come back to it.

whether the records request should be complied with including reference to back up tapes. >> i don't believe that there is a city wide policy. in my experience, departments search their own records. and don't ask the department of technology to also search back up tapes. which i understand and not the expert and you want to talk to someone at dt is a time consuming process. and quite time consuming if you consider how many public records requests come to the city every day. the documents become the

records of, or of the technology department. >> that is a complicated for the agency if the deleted records are no longer their own records to search. although it may kick into that other provision that says you have to tell people that there may be something somewhere else that technology folks have on their back up tapes. i am trying to think of what the agency's responsibility is and what standard practice is and what the public ought to expect. >> you know, i think that generally the position, our advice is that the sunshine ordinance does not require the city to search the back up tapes of documents that have been appropriately deleted under department's record retention policy. the back up tapes exist for other purposes. >> so that brings us into one other question that we have not talked about is the correct

categoryization of documents whether these were the ones that were described as category four were in fact appropriately deleted. i can understand the public being... i just have my office just had one of its, you know, a training on e-mail management. and clearly the a-plus answer was delete everything that you are allowed to delete right away. on the other hand, the public is looking for records can't understandly be surprised that a couple of weeks later, that a few weeks later, records that they are looking for are not there. and i don't know that the law is, or has attempted to go after that. the law is... these practices were in their infancy when these rules were written and the technology has changed a great deal about what will be around and how it will be accessible and i think that it

is a little hard to know what responsibility the agency has. where there are not common standards and they can determine and make their own determination both of the deletion and of what records to search. >> that is not making it any easier, but it is part of what i am struggling with. >> i apologize. >> do you have anything to say in response to that? >> no.. >> here is sort of what... i think that this is a larger issue than the one that we have right now with mr. ginsberg. this is only the question before us right now is whether mr. ginsberg committed a

willful violation of the sunshine ordinance. we will later, get to the others who had their issue adjudicated by the sunshine task force. so to me, the question, the main question is did mr. ginsberg actually conduct the search for the records that we have been told he conducted through the submission of rec and parks. because i think that at least in my reading of the records retention policy suggests that the one e-mail that he received would fall into category four, based on my read. now whether, category four is acceptable under the definition of the administrative code or the sunshine task force or whether it is illegal is not an issue that i feel that i can adjudicate right now or nor is